Chapter 2: How the Supreme Court Established Judicial Review

Prior to the Declaration of Independence, the American colonies were governed by the unwritten British constitution, which consisted of the customary practices of the British government as well as statutes passed by Parliament. In 1610, Judge Sir Edward Cook became the first judge to invalidate a statute as contrary to the British constitution in Dr. Bonham’s Case.^[1] However, his ruling that the Royal College of Surgeons could not act both as prosecutor and judge in a case involving medical practice without a license was widely criticized, and he was removed from the bench. English legal scholar Sir William Blackstone later wrote in his Commentaries that judges had no power to alter statutes passed by Parliament.

After the colonies revolted and became the United States in 1776, every state but Rhode Island adopted a written constitution. Three states—New York, Pennsylvania, and Virginia—created councils that had the power to block laws that were considered unconstitutional. However, no state explicitly empowered its judiciary to review laws for constitutionality, likely because state constitution writers feared that this practice would inhibit popular government, which they sought to empower through their constitutions.

Records of early state court proceedings are incomplete, but it appears that the first known law to be invalidated occurred in 1780 in New Jersey. Like many states, New Jersey had passed a law authorizing the seizure of property owned by persons who retained allegiance to the British Crown. The law provided that persons whose property had been seized could challenge the legality of the seizure before a six-member jury. John Holmes seized several hundred yards of silk owned by Elisha Watson on the grounds that he was a Loyalist, and Watson challenged the confiscation, winning a verdict from a six-member jury. On appeal, he argued that the use of a six-member jury violated the New Jersey Constitution, which provided that “the inestimable right of trial by jury shall remain confirmed as a part of the law . . . without repeal, forever.” In an oral decision, the New Jersey Supreme Court held that even though that Constitution did not specify the size of a jury, the word itself meant twelve men. Therefore, the law authorizing the use of a six-member jury was unconstitutional.^[2] There is no record of how the New Jersey legislature responded to this decision.

There were a few other state cases in which lawyers alleged the unconstitutionality of state laws, but probably none more interesting than Trevett v. Weeden, a 1786 case from Rhode Island. Since there was no national currency in 1786, most states issued their own currency, but merchants preferred to receive payment in foreign gold or silver coins. Rhode Island passed a law providing that anyone who refused to accept the state currency was subject to a fine, which could be assessed by judges without a jury trial. Weeden challenged this law as contrary to the common law requiring jury trials, which was binding upon the Rhode Island government under a Charter granted by King Charles II, which functioned as the state’s constitution. The five justices of the Rhode Island Supreme Court dismissed the case, allegedly because they agreed with the plaintiff that the law in question was unconstitutional. The entire bench was summoned by the state legislature to explain its actions, and three of the justices insisted they had done nothing wrong in dismissing the case. The Rhode Island legislature decided that it could not remove the justices immediately, but when their terms expired only one of the five was reelected–the only one who had not appeared at the legislature’s hearing.^[3]

At the Constitutional Convention in 1787, Virginia proposed that a “Council of Revision” consisting of the President and all federal judges be empowered to review Acts of Congress for constitutionality. Two delegates objected on the grounds that federal judges had the inherent power to review laws for constitutionally when they were adjudicating cases involving those laws. The Council of Revision was ultimately dropped for lack of support. Instead, on August 27, 1787, the delegates amended the draft by expanding federal court jurisdiction to cases arising under the Constitution, making it possible to challenge the constitutionality of state laws in federal court. James Madison argued that this would allow federal judges to protect a popularly-ratified constitution.^[4]

Once Congress had sent the new Constitution to the states for ratification, there was an opportunity for discussion of its meaning. Framers such as James Wilson, Oliver Ellsworth, and John Marshall contended that the federal judiciary would have the power to declare laws unconstitutional. Even the Anti-Federalist writer Brutus (identity still uncertain) recognized this, though he saw judicial review as a reason to reject the Constitution. The most well-known commentator to recognize that the Constitution established judicial review was Alexander Hamilton, author of Federalist 78. He argued that “where the will of the legislature declared in statutes stands in opposition to that of the people declared in the constitution, the judges ought to be governed by the latter, not the former.” Therefore, the courts’ “duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.”^[5]

New Hampshire became the ninth state to ratify the Constitution on June 21, 1788, meeting the Article VII requirement of ratification by two-thirds of the states. However, the Articles of Confederation remained in effect until March 4, 1789, when the first Congress assembled in New York City. The executive branch remained dormant until George Washington took the oath of office on April 30. Although the Constitution mentioned a “Supreme Court,” Article III required Congress to establish a federal judicial system, which it did on September 24. Immediately after signing the bill into law, President Washington nominated the first six Supreme Court justices, all of whom the Senate confirmed by voice vote on September 26. One of the six declined to serve, and Washington replaced him with James Iredell, who had written a pamphlet in support of judicial review two years earlier.

The Court met for the first time in February of 1790, but it had no cases on its docket. It would not hear its first case until the following year, and in 1792, the first case involving an issue of constitutionality arose. To process the large number of disability pension applications, Congress adopted the Invalid Pensions Act, which permitted disabled soldiers to apply to a federal Circuit Court for a pension. But the three Circuit Courts, each of which included two Justices, could only make recommendations to the Secretary of War, who made the final decisions on the pension claims. When William Hayburn appealed the denial of a pension, five of the six Justices opined that the Invalid Pensions Act was unconstitutional, since it violated the principle of separation of powers by making the judiciary subordinate to an executive official. Rather than invalidating the Act, the Court in Hayburn’s Case, 2 U.S. 409 (1792), deferred its decision to allow Congress to adopt an alternative procedure, which it did.

The first case to actually address the constitutionality of a specific law was United States v. Ravara, 2 U.S. 297 (1793). Article III provides that the Supreme Court shall have original jurisdiction of cases involving consuls, but the 1789 Judiciary Act gave concurrent jurisdiction to federal district courts. When the Consul from Genoa was indicted by a Grand Jury in a district court, he challenged the indictment as violating the Constitution. The Supreme Court rejected his argument, holding that the Constitution did not bar Congress from creating an alternative forum for cases involving consuls. Justice Iredell dissented on the grounds that the Constitution clearly assigned these cases to the Supreme Court, and thus the alternative forum provision was unconstitutional and should be invalidated. Iredell also dissented in Chisholm v. Georgia, 2 U.S. 419 (1793), writing that he would invalidate another provision of the Judiciary Act “because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others.”

By 1795, it was clear to Alexander Hamilton that the Supreme Court would invalidate legislation if it believed that it conflicted with the Constitution. At his urging, Congress had passed the Carriage Tax Act the previous year, imposing taxes of $1-$10 per carriage on the owners’ annual use. Hamilton justified the tax as an excise tax, which was not constituitonally required to be assessed proportionately to state populations, since any proportional assessment would mean it would have to be quite high in states with few carriages. However, since the tax was due whether or not the carriage was used, it seemed more like a direct tax that did have to be assessed proportionately. The tax was met with condemnation by Virginia carriage owners, and Hamilton feared a constitutional challenge in federal court. If the Supreme Court invalidated the tax, the US Treasury would have to refund all the money that had been paid, which could cripple the operations of the government.

Hamilton learned that Daniel Hylton intended to file suit to challenge the tax, so Hamilton reached out to his attorney, John Marshall (the future Supreme Court Chief Justice). Hamilton wanted the case filed in Circuit Court so that the government could take a direct appeal to the Supreme Court in the hopes of obtaining a swift determination of constitutionality. However, Circuit Court jurisdiction required that there be $2000 in controversy. Hylton owned one chariot that was taxed at $8. Hamilton asked Marshall to allege in his complaint that Hylton owned 125 chariots, which would make the tax reach the jurisdictional minimum, and entered into a stipulation that the government would pay Marshall’s fees and that if Hylton lost he would only have to pay $8. Marshall agreed and assigned the case to an associate, John Taylor. The Circuit Court deadlocked 1-1 at the trial since one assigned judge was absent. Rather than wait for a rehearing, the parties agreed that Hylton would stipulate that he had lost and file a direct appeal with the Supreme Court.

By the time the case came up for argument, Hamilton had been replaced as Treasury Secretary by Oliver Wolcott. But Wolcott hired Hamilton to make what would be his only argument in the Supreme Court to make the claim that the carriage tax was constitutionally an excise tax that did not have to be apportioned on the basis of state population. The Court that heard Hylton v. United States, 3 U.S. 171 (1796), had only three Justices since one had yet to be sworn in, a second was recused, and a third was sick. There was no single opinion for the Court, as it was still the practice for each Justice to write separately. But all three Justices held the tax constitutional, largely on the grounds that having to apportion such taxes on the basis of population would prevent the federal government from raising sufficient revenue. Justice Iredell noted that the Court could have found the tax unconstitutional, but that the Court’s reinterpretation of the tax apportionment requirement meant that it was not necessary to do so.^[6]

Nevertheless, the Supreme Court’s power to declare a law unconstitutional remained dormant, though there was little doubt that it existed. Three years later, in Hollingsworth v. Virginia, 3 U.S. 378 (1798), the Court struck down the provision of the 1789 Judiciary Act that allowed suits against state governments in federal court. The reason was clear: the 11th Amendment, which was ratified that year, barred federal courts from hearing such suits. The Court’s opinion does not specifically declare that the provision was unconstitutional, but the dismissal of all suits brought under that provision make it clear that this is what the Court intended.

The case that most people think established the Court’s power of judicial review is Marbury v. Madison, decided in 1803. When you read the opinion, it may sound as if the case was decided after extensive debate about whether the Court possessed the power of judicial review, which led the Court explain why judicial review was inherent in the Constitution. However, there was never any discussion of the issue before the Court because the issue of whether the Supreme Court had the constitutional power to grant the remedy requested—the issuance of a writ of mandamus–was never raised by either of the parties to the case.^[7] A writ of mandamus is a judicial order requiring a government official to take action that is required by law, and the Supreme Court had issued several of these in its first decade. This is why most people were surprised when the Court issued this decision. But few were surprised that the Court confirmed that the Constitution gave it the power to strike down laws that were inconsistent with that document.

In the order in which the court has viewed this subject, the following questions have been considered and decided.

1st.  Has the applicant a right to the commission he demands?

2dly.  If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

3dly.  If they do afford him a remedy, is it a mandamus issuing from this court?

The first object of enquiry is,

1st.  Has the applicant a right to the commission he demands?

His right originates in an act of congress passed in February, 1801, [which provides] “that there shall be appointed in and for each of the said counties, such number of discreet persons to be justices of the peace as the president of the United States shall, from time to time, think expedient, to continue in office for five years.

It appears, from the affidavits, that in compliance with this law, a commission for William Marbury as a justice of peace for the county of Washington, was signed by John Adams, then president of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out.

In order to determine whether he is entitled to this commission, it becomes necessary to enquire whether he has been appointed to the office.  For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. . . .

The last act to be done by the President, is the signature of the commission.  He has then acted on the advice and consent of the senate to his own nomination.  The time for deliberations has then passed.  He has decided.  His judgment, on the advice and consent of the senate concurring with his nomination, has been made, and the officer is appointed. This appointment is evidenced by an open, unequivocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as respects the appointment, an inchoate and incomplete transaction.

Some point of time must be taken when the power of the executive over an officer, not removable at his will, must cease.  That point of time must be when the constitutional power of appointment has been exercised.  And this power has been exercised when the last act, required from the person possessing the power, has been performed.  This last act is the signature of the commission. . . .

The commission being signed, the subsequent duty of the secretary of state is prescribed by law, and not to be guided by the will of the President.  He is to affix the seal of the United States to the commission, and is to record it.

This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; but is a precise course accurately marked out by law, and is to be strictly pursued.  It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws.  He acts, in this regard, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President.  It is a ministerial act which the law enjoins on a particular officer for a particular purpose. . . .

The transmission of the commission, is a practice directed by convenience, but not by law.  It cannot therefore be necessary to constitute the appointment which must precede it, and which is the mere act of the President.  If the executive required that every person appointed to an office, should himself take means to procure his commission, the appointment would not be the less valid on that account.  The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter enclosing the commission should happen to get into the post-office and reach him in safety, or to miscarry. . . .

It is therefore decidedly the opinion of the court, that when a commission has been signed by the President, the appointment is made; and that the commission is complete, when the seal of the United States has been affixed to it by the secretary of state. . . .

Mr. Marbury, then, since his commission was signed by the President, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of his country.

To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.

This brings us to the second enquiry; which is,

2dly.  If he has a right, and that right has been violated, do the laws of his country afford him a remedy?

The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.  One of the first duties of government is to afford that protection. . . .

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.  To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion.  The subjects are political.  They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. . . .

But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to   perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.

The conclusion from this reasoning is, that where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.

The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority.  If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one; in consequence of which a suit had been instituted against him, in which his defence had depended on his being a magistrate; the validity of his appointment must have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a legal right, either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment.

That question has been discussed, and the opinion is, that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the president, the seal of the United States was affixed to the commission.

It is then the opinion of the court,

1st.  That by signing the commission of Mr. Marbury, the president of the United States appointed him a justice of peace, for the county of Washington in the district of Columbia; and that the seal of the United States, affixed thereto by the secretary of state, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appointment conferred on him a legal right to the office for the space of five years.

2dly.  That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which, is a plain violation of that right, for which the laws of his country afford him a remedy.

It remains to be enquired whether,

3dly.  He is entitled to the remedy for which he applies.  This depends on,

1st.  The nature of the writ applied for, and,

2dly.  The power of this court. . . .

[T]o render the mandamus a proper remedy, the officer to whom it is directed, must be one to whom, on legal principles, such writ may be directed; and the person applying for it must be without any other specific and legal remedy. . . .

It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus, is to be determined.  Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation.

But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which, the President cannot lawfully forbid, and therefore is never presumed to have forbidden. . . . [T]he applicant has, to that commission, a vested legal right, of which the executive cannot deprive him.  He has been appointed to an office, from which he is not removable at the will of the executive; and being so appointed, he has a right to the commission which the secretary has received from the president for his use….

This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be enquired,

Whether it can issue from this court.

The act to establish the judicial courts of the United States authorizes the supreme court “to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

The secretary of state, being a person holding an office under the authority of the United States, is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional, and therefore absolutely incapable of conferring the authority, and assigning the duties which its words purport to confer and assign.

The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as congress shall, from time to time, ordain and establish.  This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that “the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party.  In all other cases, the supreme court shall have appellate jurisdiction.”

It has been insisted, at the bar, that as the original grant of jurisdiction, to the supreme and inferior courts, is general, and the clause, assigning original jurisdiction to the supreme court, contains no negative or restrictive words; the power remains to the legislature, to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. . . .

When an instrument organizing fundamentally a judicial system, divides it into one supreme, and so many inferior courts as the legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them, as to define the jurisdiction of the supreme court by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning.

To enable this court then to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction.

It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legislature that a mandamus should be used for that purpose, that will must be obeyed.  This is true, yet the jurisdiction must be appellate, not original.

It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.  Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and therefore seems not to belong to  appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction.

The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to enquire whether a jurisdiction, so conferred, can be exercised.

The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.  It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness,  is the basis, on which the whole American fabric has been erected.  The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated.  The principles, therefore, so established, are deemed fundamental.  And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

The government of the United States is of the latter description.  The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.  To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?  The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

Between these alternatives there is no middle ground.  The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society.  It is not therefore to be lost sight of in the further consideration of this subject.

If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?  Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law?  This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on.  It shall, however, receive a more attentive consideration.

It is emphatically the province and duty of the judicial department to say what the law is.  Those who apply the rule to particular cases, must of necessity expound and interpret that rule.  If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case.  This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply. . . .

There are many other parts of the constitution which serve to illustrate this subject.

It is declared that “no tax or duty shall be laid on articles exported from any state.” Suppose a duty on the export of cotton, of tobacco, or of flour; and a suit instituted to recover it.  Ought judgment to be rendered in such a case? Ought the judges to close their eyes on the constitution, and only see the law.

The constitution declares that “no bill of attainder or ex post facto law shall be passed.”

If, however, such a bill should be passed and a person should be prosecuted under it; must the court condemn to death those victims whom the constitution endeavors to preserve?

“No person,” says the constitution, “shall be convicted of treason unless on the testimony of two witnesses to the fame overt act, or on confession in open court.”

Here the language of the constitution is addressed especially to the courts.  It prescribes, directly for them, a rule of evidence not to be departed from.  If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legislative act?

From these, and many other selections which might be made, it is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character.  How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support!

The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on the subject.  It is in these words, “I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me . . . according to the best of my abilities and understanding, agreeably to the constitution, and laws of the United States.”

Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

If such be the real state of things, this is worse than solemn mockery.  To prescribe, or to take this oath, becomes equally a crime.

It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank.

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

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Not everyone agreed with the Supreme Court’s assertion of judicial review, and some believed this power only applied to federal laws, not state laws. But while objections to the Court’s power to interpret the Constitution persisted for a few decades, most accepted Chief Justice Marshall’s argument that constitutional government is predicated on the power of a Court to invalidate laws inconsistent with the Constitution. And so we begin our study of constitutional freedoms with the recognition that it is the Supreme Court that ultimately has the power to determine and define these freedoms. But before we do that, here’s a brief discussion of American legal citation, which will help you understand the names, numbers and abbreviations that you see attached to each case in this book.